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United States v. Monteiro

United States Court of Appeals, First Circuit

September 15, 2017

FRANCISCO MONTEIRO, Defendant, Appellant.


          Julia Pamela Heit for appellant.

          David B. Goodhand, Attorney, Criminal Division, Appellate Section, U.S. Department of Justice, with whom Carmen Ortiz, United States Attorney, Christopher J. Pohl, Assistant United States Attorney, Timothy E. Moran, Assistant United States Attorney, Leslie R. Caldwell, Assistant Attorney General, Criminal Division, U.S. Department of Justice, and Sung-Hee Suh, Deputy Assistant Attorney General, Criminal Division, U.S. Department of Justice, were on brief for appellee.

          Before Lynch, Lipez, and Barron, Circuit Judges.


         In 2011 appellant Francisco Monteiro and his accomplice Joseph Guarneri planned and executed a robbery of fellow drug traffickers Stanley and Joshua Gonsalves. Guarneri subsequently became a customer of Monteiro's, purchasing fifty to one hundred grams of heroin from him on a weekly basis. In early 2013, Drug Enforcement Administration ("DEA") agents apprehended Guarneri for drug trafficking and convinced him to turn government's witness against his former co-conspirator.

         After an eight-day trial, a jury found Monteiro guilty on one count relating to the 2011 robbery and three counts relating to the subsequent drug conspiracy. Monteiro challenges his conviction and sentence on numerous grounds. Finding none of his contentions meritorious, we affirm.

         I. Background

         We provide a summary of the essential facts of this case, framed in the light most compatible with the jury's verdict, saving additional detail for the analysis that follows. See United States v. Manor, 633 F.3d 11, 12 (1st Cir. 2011).

         A. The 2011 Robbery

         Monteiro first became friendly with fellow Boston-area drug trafficker Joseph Guarneri in 2009, and Guarneri began selling him oxycodone. Eventually, Monteiro told Guarneri that he could supply him pills at a better price. Soon after, the buyer-seller relationship flipped and Guarneri began purchasing batches of fifty to one hundred oxycodone pills from Monteiro to resell.

         Guarneri then began travelling to Florida to purchase larger quantities of oxycodone from another supplier. He eventually introduced two other Boston-area drug traffickers, the brothers Stanley and Joshua Gonsalves, to his Florida supplier. After Stanley Gonsalves purchased a large batch of pills from Guarneri's supplier, he asked Guarneri to set up another purchase. Guarneri and Monteiro responded to this request by formulating a scheme to rob the Gonsalves brothers.

         Guarneri told Stanley Gonsalves that he could secure 10, 000 oxycodone pills in exchange for $225, 000. On May 13, 2011 Guarneri lured the Gonsalves brothers to Monteiro's home to execute the purported drug purchase. When the Gonsalves brothers arrived, Guarneri brought Stanley into Monteiro's home, while Joshua remained in his brother's blue Mercedes SUV with another associate and approximately $225, 000 in cash. Inside the home, Stanley told Monteiro that he wanted to see the pills so that he could examine and count them. Monteiro told Stanley that he would not show him the pills until Stanley showed him the $225, 000. Stanley agreed, and sent Guarneri out to his car to fetch his brother Joshua and the money.

         After Guarneri reentered the home with Joshua and the money, two other accomplices who had been lying-in-wait - Tavares Bonnett and Michael Fula -- drew their guns and trained them on the Gonsalves brothers. Initially, Stanley refused to hand over the cash to Monteiro. To overcome this resistance, Bonnett hit Stanley on the side of the head with his gun. Stanley then handed the money over to Monteiro and his accomplices. At Monteiro's instruction, Guarneri again went outside to the Gonsalves vehicle to secure any weapons the brothers might have brought with them. After Guarneri found a gun in the vehicle, Monteiro, Bonnett, Fula, and Stanley all rushed out of the house, and Guarneri handed the weapon to Monteiro.

         Disarmed, the Gonsalves brothers got into their Mercedes and drove away. At that point, four other individuals who had been hiding in the house rushed out, jumped into a parked Volvo, and sped off in the same direction as the Mercedes. Eventually, the Volvo passed the Gonsalves brothers' Mercedes, and the Mercedes rammed the Volvo off the road. Meanwhile, Monteiro, Guarneri, Bonnett, and Fula traveled to the home of Monteiro's grandmother, where they divided the proceeds of the robbery. Monteiro kept most of the money. Guarneri collected $70, 000, and the remaining cash was split between Bonnett and Fula.

         B. The 2013 Drug Conspiracy

         By 2012, Monteiro had begun selling heroin to Guarneri in batches of either fifty or one hundred grams. Sometimes Monteiro sold him powdered heroin. At other times the heroin was solid, either in the shape of a hockey puck or a tall, narrow cylinder.

         In early 2013, the DEA approached Guarneri and informed him that he would soon be facing a federal indictment for drug trafficking. Agents told Guarneri that he could reduce his prison sentence if he cooperated in an investigation against Monteiro, and Guarneri agreed to assist them.

         Guarneri first called Monteiro while serving as a DEA informant on February 14, arranging to purchase 100 grams of heroin at a price of $6, 500. The following day, Guarneri drove to New Bedford, Massachusetts and picked up Monteiro and Monteiro's cousin, Manuel Lopes, to initiate the heroin sale. Monteiro and Lopes directed Guarneri to a building, and Lopes took Guarneri into an apartment there. Inside, Guarneri gave Lopes and another individual $6, 500 in exchange for 96.4 grams of heroin.

         On February 20, Guarneri again met with Monteiro, this time to set up a fifty-gram heroin purchase. The two spoke again by phone two days later, and Monteiro directed Guarneri to purchase the drugs from Lopes in New Bedford. When Guarneri met Lopes later that day, however, Lopes told Guarneri that his source was not able to procure the heroin, and Guarneri left empty-handed.

         Guarneri again spoke with Monteiro by phone several days later on February 25, and Monteiro confirmed that the sale would go forward that day. He also told Guarneri that they would not be conducting the sale in the same apartment as the previous transaction because Monteiro had robbed the occupant in the interim. When Guarneri traveled to New Bedford to purchase the drugs, he found Lopes rather than Monteiro at the site. Lopes tried to coax Guarneri to advance him the money without providing the heroin, but Guarneri refused. Lopes left the site, and Monteiro showed up and berated Guarneri for not trusting his accomplice. Monteiro convinced Guarneri to hand over the money, and he purportedly left to get the heroin. However, Monteiro never came back. Later, Monteiro called Guarneri and falsely told him that he had been stopped by the police and they had seized the purchase money.

         Days later, law-enforcement authorities secured arrest warrants for Monteiro and Lopes, and search warrants for their respective residences. Police executed the warrants on March 1. At Monteiro's home, police found $1, 300 in currency with serial numbers matching the money that DEA agents had given to Guarneri. They also discovered seven small envelopes of heroin stamped with the word "Future" in green ink. At Lopes's residence, police found thousands of identically packaged envelopes with the green "Future" identifier.

         In September 2014, a federal grand jury in Massachusetts issued a five-count superseding indictment charging Monteiro, Lopes, and another individual with conspiring to possess with intent to distribute one hundred grams or more of heroin, in violation of 21 U.S.C. § 846 (Count 1); possession with intent to distribute and distribution of heroin, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Count 2); and possession with intent to distribute heroin, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Count 3). The indictment also charged Monteiro, alone, with conspiring to commit a Hobbs Act robbery, in violation of 18 U.S.C. § 1951 (Count 4); and using and carrying a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A) and 18 U.S.C. § 2 (Count 5).

         After an eight-day trial in April 2015, a jury convicted Monteiro on Counts 1 - 4 and acquitted him on Count 5. The district court sentenced Monteiro to 250 months of imprisonment and 8 years of supervised release. Monteiro timely appealed both his conviction and sentence.

         II. Discussion

         Monteiro presses six primary claims of error on appeal, asserting that: (1) the drug charges (Counts 1 - 3) and the robbery charges (Counts 4 and 5) were improperly joined and should have been severed; (2) the evidence presented at trial was insufficient to convict him for possession with intent to distribute heroin (Count 3); (3) the district court admitted evidence that he views as inappropriately prejudicial; (4) the district court erred in curtailing his attorney's attempt to question defense witness Joshua Gonsalves on redirect; (5) the district court's jury instructions relating to the terms "aiding and abetting" were flawed; and (6) the district court improperly applied certain sentencing enhancements when calculating his Guidelines Sentencing Range. We address each argument in turn.

         A. Joinder of Charges and Denial of Monteiro's Motion to Sever

         Before trial Monteiro argued that the drug conspiracy charges and robbery charges should have been tried separately and that the decision to join them violated Federal Rule of Criminal Procedure 8(a).[1] He also unsuccessfully argued that even if initial joinder was appropriate, the district should have severed the charges pursuant to Rule 14(a).[2] Monteiro renews both arguments on appeal.

         A "Rule 8 claim is primarily one of law, which we review de novo, while [a] Rule 14 claim involves application of a general standard to particular facts, such that deference to the lower court is appropriate." United States v. Boulanger, 444 F.3d 76, 87 (1st Cir. 2006) (alteration in original) (quoting United States v. Meléndez, 301 F.3d 27, 35 (1st Cir. 2002)). Hence, we review a trial court's denial of a Rule 14 motion to sever for abuse of discretion. See United States v. Alosa, 14 F.3d 693, 694-95 (1st Cir. 1994).

         1. Joinder

         Rule 8(a) states that joinder of charges is appropriate if the offenses "are of the same or similar character" or if they "are connected with or constitute parts of a common scheme or plan." Boulanger, 444 F.3d at 87. We have stated that the rule's joinder provision should be "generously construed in favor of joinder." United States v. Randazzo, 80 F.3d 623, 627 (1st Cir. 1996); see also Meléndez, 301 F.3d at 35. The two sets of charges need not be identical, and "we assess similarity in terms of how the government saw its case at the time of the indictment." Boulanger, 444 F.3 at 87 (quoting Meléndez, 301 F.3d at 35). Traditionally, we consider factors such as whether the charged offenses fall under the same statute, whether the crimes involved similar victims, locations, or modes of operation, as well as when the purported conduct occurred. Id. Moreover, joinder is proper if it "allows the jury to see the complete set of facts about the alleged criminal enterprise." 1A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 143 (4th ed. 2016). Hence, we also consider "the extent of common evidence" among the charged offenses. Randazzo, 80 F.3d at 628.

         Based on these considerations, joinder of Monteiro's charges was appropriate. Throughout the trial, the government sought to prove that Monteiro was not only a drug dealer, but also a "robbery artist" -- stealing both cash and drugs from other dealers -- to finance his own enterprise. Moreover, Guarneri was a key link between the two sets of crimes. He was not, as Monteiro suggests, a happenstance prosecution witness who could have testified at two different trials. Rather, Guarneri provided crucial testimony that tied together the strands of Monteiro's entire criminal enterprise, as he was both Monteiro's accomplice in robbing the Gonsalves brothers (Counts 4 and 5) and Monteiro's customer in the drug conspiracy (Counts 1 - 3). Furthermore, the government presented evidence at trial indicating that Monteiro had set up a drug deal with Guarneri, only to later steal Guarneri's money, ...

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